Criminal Law

Cases Emanating from the Child Justice Act, 2008 (Act 75 of 2008)

• Raduvha v Minister of Safety and Security and Another [2016] ZACC 24 (11 August 2016)
  Constitutional Court handed down its judgment in a matter concerning a claim for damages brought by a minor following her arrest and detention for allegedly interfering with a police officer during the execution of his duties.
• S v Thwala (A92/2015) [2015] ZAGPPHC 114 (26 February 2015)
  Criminal law — Juvenile offenders — Pre-trial– — Preliminary enquiry — None held in terms of Child Justice Act — Section 43(3) peremptory — Proceedings in terms of s 112 of Criminal Procedure Act 51 of 1977 irregular, conviction set aside and matter to proceed de novo before different magistrate to hold preliminary enquiry — Child Justice Act 75 of 2008, s 43.
• S vChetty [2014] DR326/14 Special Review Judgment
  Diversion as provided for under CHapter 8 of the Act.
• Coughlan N.O. v Road Accident Fund 2015 ZACC 10 (20 April 2015)
  Decision on whether foster child grants are res inter alios acta — Deductibility of foster child grants from compensation for loss of support payable to foster children — Duty of the State — Rights of vulnerable children — Constitution Act — sections 27 and 28 — Children’s Act 38 of 2005 — Sections 1, 156(1)(e) and 181 — Foster child grants are not predicated on death of a parent — Nature and purpose different – Foster child grants not payable to the foster child but to the foster parent — Sections 18(2) and (3) of the Road Accident Fund Act 56 of 1996
• S v Goliath [2015] JOL 32716 (ECG) (17 Feb 2014)
  Held that once a child sentenced to compulsory residence in a Child and Youth Care Centre has been admitted thereto, the Child Justice Court which sentenced that child becomes functus officio, its jurisdiction having been fully and finally exercised. The only basis therefore upon which that child’s sentence could be interfered with would be by way of review or appeal. Absent that, the presiding officer has no jurisdiction to impose an alternative sentence upon the child in question. In the light of the closure of the relevant facility the sentence imposed upon the accused had to be set aside and the case remitted to the regional magistrate for sentencing afresh.
• J v National Director of Public Prosecutions and Another (CCT 114/13) (6 May 2014)
  Today the Constitutional Court handed down a judgment declaring section 50(2)(a) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act (Sexual Offences Act) unconstitutional. The section provides that when a person is convicted of a sexual offence against a child or person who is mentally disabled, a court must make an order to include the offender’s particulars on the National Register for Sex Offenders (Register). Having one’s particulars entered on the Register entails certain limitations in employment, in licensing certain facilities and ventures, and in the care of children and persons with mental disabilities.
• S v Danster [2013] JOL 30662 (ECP) (05 December 2012)
  "The accused, who was 17 years old at the relevant time, was convicted of attempted robbery. In terms of a pre-sentence report which was obtained, correctional supervision was recommended by the probation officer. Both the prosecutor and the attorney of the accused requested that the accused be sentenced in terms of the pre-sentence report. The Court sentenced the accused to 12 months’ correctional supervision. However, the sentence reflected on the J15 charge sheet stated that the accused was to be placed under the supervision of a probation officer for 12 months, in terms of section 290 of the Criminal Procedure Act 51 of 1977."

• Mosieling v The State (144/2012) ZAWCHC (23 October 2012)
  "The accused in this matter, a 15 year old teenager, was convicted in the Child Justice Court held at the Magistrates Court in Cape Town of possession of one "stop" of dagga in contravention of Section 4(b) of Act 140 of 1992. He was legally represented and assisted by his mother during the proceedings."

• S v Lakay (A 724/2010) [2012] ZAWCHC 14 (2 March 2012)
  Principle: Sentencing of Juvenile offenders- Court’s approach- to be in line with
  Section 28 of the Constitution even though the CJA not in operation at time of commission of the Offence. Section 28(1)(1)(g) of the Constitution of relevance to sentencing of juvenile offenders/ children in conflict with the law. (Similar approach by SCA adopted earlier in  S v BF, 2012(1) SACR 298 ( SCA), although CJA not quoted as offence committed before CJA was in operation).

• S v Lukhele (A125/2012) [2012] ZAGPPHC 27 (2 March 2012)
  Principle: Section 75 read with 72 of the Child Justice Act 75 of 2008 not complied with when sentencing a child in conflicting with the law although the offence was committed after the CJA came into operation- Review of the proceedings to be in line with the provisions of the sentencing regime of the CJA.

• S v Mahlangu and Another (CC70/2010) [2012] ZAGPJHC 114 (22 May 2012)
  Principle: Treatment and handling of children by police when investigating. To be treated in terms of the Constitution in order for a subsequent trial to be fair.

• S v Ndwandwe (AR99/12) [2012] ZAKZPHC 47 (6 August 2012)
  Principle: Section 63(4)(b)- Child Justice Court to always ensure that the best interest of the child are upheld. Child Justice Court to ensure that at all stages of the trial especially during cross examination of a child that this is done with no hostility and that questioning is appropriate for child’s age and understanding.

• Ruiters v S (A560/08) [2010] ZAWCHC 557 (12 November 2010)
• S v Fortuin (38/2011) [2011] ZANCHC 28 (11 November 2011)
• S v Nakedi (12/2011) [2012] ZANWHC 5 (2 January 2012)
• S v Stander (120037) [2012] ZAECPEHC 22; 2012 (1) SACR 595 (ECP) (30 March 2012)
  Principle: Section 85 of the CJA- Whether or not the proceedings in respect of a child who was legally represented during his or her trial are reviewable in terms of the CJA. There are conflicting decisions (above cases) on the matter.
  The Eastern Cape decision took it further that even Regional court cases where there is a section 85 and 76 sentence, such proceedings to be automatically reviewable. Further that right to legal representation cannot be waived at the child justice court, or there should be an attorney who is a friend of the court in terms of section 85 (1) and (2) of the CJA.

• S v CKM, FTM and IMM (20/1): Children and sentencing and the Child Justice Act

• AI Gani NO v The State (H47/11): Review of young female offender’s conviction – Zimbabwean citizen – both parents deceased – initial uncertainty about age – Child Justice Act – diversion from criminal justice system – child justice system charged with implementing criminal jurisprudence whatever residential status in SA – failure to consider diversion from criminal justice system a fatal factor in the conviction process – conviction cannot stand – case referred back to court a quo for proper implementation of relevant provision of Act.

• S v J (695/10) [2010] ZASCA 139 (19 November 2010) - Parental rights and responsibilities under the Children’s Act 38 of 2005: unmarried father’s responsibilities and rights; grandparents’ responsibilities and rights; jurisdiction of high court to set aside or suspend operation of another high court’s order.

• YM v LB (465/09) [2010] ZASCA 106 (17 September 2010) - Scientific tests on a child to determine paternity should not be ordered where paternity has been shown on a balance of probabilities. Media Summary

• Special Review No 19/07 - Maneli v Maneli